Sotomayor in the Dock By: John Perazzo FrontPageMagazine.com | Tuesday, July 14, 2009

Sonia Sotomayor's Senate confirmation hearings are slated to begin today, and the Democrats and their media allies are already doing their part to make sure that the Supreme Court nominee gets the job.

With near unanimity, mainstream media outlets have presented Sotomayor as a genial striver whose inspiring personal story of struggle and triumph against the steepest odds makes her an ideal choice to serve the country’s highest court. The theme has been echoed by Congressional Democrats, who have suggested that Sotomayor is such a superbly qualified nominee that only the most cynically partisan, and perhaps even racist political hacks would challenge her nomination.

In fact, however, there are legitimate reasons for Americans of goodwill, regardless of their party affiliation, to be concerned about Sotomayor’s presence on the Court for the next generation or longer. It would be immensely clarifying for the country if, rather than being anointed to the bench, the nominee were asked the following questions about her judicial philosophy and her judicial record.

1. From 1980-1992, you were, according to TheNew York Times, the “top policy maker” on the Puerto Rican Legal Defense and Education Fund's (PRLDEF) Board of Directors. This organization promoted, and continues to promote, amnesty and expanded rights for illegal immigrants living in the United States; preferential treatment for minorities in job-hiring, career advancement, and university admissions; and race-based redistricting plans that would guarantee congressional electoral victories for Latino candidates. During your time on the PRLDEF Board, the group condemned then-New York City Mayor David Dinkins' characterization of three Puerto Rican FALN terrorists (who had shot five members of Congress in 1954) as "assassins." According to the PRLDEF, which referred to these killers as "fighters for freedom and justice," the mayor's comments "lacked sensitivity."

Do you continue to share the PRLDEF's positions on these matters? If not, why not?

2. You have been, and still may be, a member of the National Council of La Raza—a racial grievance group whose name means, literally, "The Race." This organization seeks to give illegal immigrants full access to taxpayer-funded health care services; supports voting rights for illegal immigrants; calls any reduction in government assistance to illegals "a disgrace to American values"; supports continued mass Mexican immigration into the United States, so as to achieve, by the sheer weight of numbers, the annexation of the American Southwest by its allegedly rightful owner, Mexico; has strongly opposed most of the U.S. government's post-9/11 counterterrorism efforts, charging that those measures have "undermined" the rights of "noncitizen Latinos"; supports access to driver's licenses for illegal immigrants; opposes the REAL ID Act, which requires that all driver's license and photo ID applicants be able to verify that they are legal residents of the United States; opposes laws that would empower state and local authorities to enforce federal immigration statutes; lobbies for racial and ethnic preferences (affirmative action) and set-asides in hiring, promotions, and college admissions; and in 2008 worked closely with the voter-registration fraud factory ACORN in a pro-Obama get-out-the-vote initiative.

Are you still a member of the National Council of La Raza? Do you support its agendas? If not, which ones, specifically, do you reject?

3. In 1998 the Family Research Council named you as the recipient of its "Court Jester Award," mocking your decision to extend the application of the Americans With Disabilities Act to a female law student who had cited her own inability to read as the "handicap" that had caused her to fail the New York State bar exam three times. In that decision, you reasoned that because the woman was "substantially limited in the major life activity of reading when compared to most people by her slow reading rate and by the fatigue caused by her lack of automaticity," it would be "invidious" to deny her request that she be given extra time to complete her exam—so as "to allow," as you put it, "her true abilities and knowledge to be assessed." Thus you awarded her $7,500 in damages, and ruled that she should be allowed four days to take the bar exam instead of the usual two. (She nonetheless went on to fail the exam for a fourth time.)

In retrospect, do you still think that your ruling was logical and reasonable?

4. In 2004, another plaintiff with poor reading skills pleaded his case before you in the U.S. Court of Appeals for the 2nd Circuit. His name was Frank Ricci, a white New Haven, Connecticut, firefighter who had scored very well on the test which his local fire department had administered in order to determine who should be promoted to such positions as lieutenant and captain. In preparation for the firefighters' test, Ricci, a dyslexic who struggles with reading and retaining information, outworked most of his competition—spending more than $1,000 to purchase books that the city had recommended as study guides; hiring someone to read the material to him; and studying 8 to 13 hours a day. When the test scores were tabulated, Ricci’s name was near the top of the list; he should have been promoted, but he wasn’t.

The reason? When it was revealed that black firefighters had, on average, performed quite poorly on that test, the city of New Haven, reasoning that the exam itself must have been racially biased, mandated that the test results be discarded and that no promotions be granted that year to anyone. In response, Ricci filed a federal civil-rights lawsuit—which was argued before you and two other members of a three-judge panel -- contending that he (along with 16 fellow white firefighters) had been wrongfully denied the promotion he deserved. In two separate hearings over a four-year period, you voted against Ricci, et al. Both of those rulings were overturned just two weeks ago by the Supreme Court which you are now seeking to join.

Do you continue to maintain that racial discrimination against white males is an acceptable practice?

5. In 2008 you took exception to the comments of fellow Second Circuit judge Jose Cabranes, who had stated that judges, in rendering their decisions in court, must transcend their own personal sympathies and prejudices. "I wonder," you said, "whether achieving that goal is possible in all or even most cases. And I wonder whether by ignoring our differences as women and men of color we do a disservice to both the law and society."

Do you not believe that color-blindness is a worthy goal in jurisprudence? If not, why not? What would be a better goal?

6. In a speech at UC Berkeley, you suggested, approvingly, that making the federal bench more "diverse" — in terms of ethnicity, race, gender, or sexual orientation—"will have an effect on the development of the law and on judging ... [O]ur gender and national origins may and will make a difference in our judging.... Personal experiences affect the facts that judges choose to see." Refuting the notion that judges should not permit the foregoing personal traits to influence their legal decisions, you added: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Specifically, why are the experiences of a Latina woman more conducive to the development of wisdom and good judgment than those of a white male? Moreover, should the legal decisions of Latina women take precedence over those of white males?

7. You penned the foreword to the 2007 book, The International Judge, where you said that American judges should try to "learn from foreign law and the international community when interpreting our Constitution." You also stressed the importance of having judges "learn from international courts ... about the process of judging and the factors outside of the law that influence our decisions."

Why do you believe that the laws and court rulings of other countries, where histories and cultures may have little in common with America's, should influence our legal system?

8. You have expressed your support for the concept of legal realism, a judicial philosophy that rejects strict constructionism and originalism as regards the law or the Constitution. Legal realism says that judges should not merely interpret the law or infer the original intent of the law or the Constitution, but should also introduce theories from the social sciences in an effort to inject the law with an added measure of perceived enlightenment. Stating that the law is not "static and predictable," you have observed, with approval, that courts and lawyers are "constantly overhauling the laws and adapting it to the realities of ever-changing social, industrial and political conditions."

Do you view the Constitution as a document that says precisely what its framers intended, and that should be followed unless it is amended by formal legislative procedures? Or do you instead consider the Constitution to be a "living document" that is ever-open to reinterpretation and transformation, depending on the political preferences of whichever legislators and judges preside at a given point in time?

9. Nowhere in the Constitution or any of its amendments are the courts authorized to make law, that being the function of the legislative branch of government. But in May 2009 a video surfaced which showed you speaking at a 2005 panel discussion for law students. In that video, you said that a "court of appeals is where policy is made"—a candid rejection of the notion that a judge's proper role is to interpret the law rather than to create it. Then, remembering suddenly that the event was being recorded, you rushed to add: "And I know—I know this is on tape, and I should never say that because we don't make law. I know. Okay, I know. I'm not promoting it. I'm not advocating it. I'm—you know."

What is your actual position on this? Do you, or do you not, believe that the courts are authorized to make, rather than merely to interpret and follow, the law?

10. In a January 2009 Second Circuit Court case known as Maloney v. Cuomo, you ruled that states are not required to obey the Second Amendment's mandate against the infringement of the right to keep and bear arms. The opinion to which you signed your name stated that "the Second Amendment ... is a limitation only upon the power of Congress and the national government, and not upon that of the state."

Do you believe that states are authorized to pass laws that override the protections of the Second Amendment? Moreover, do states have the authority to override any and all dictates of the Constitution and the Bill of Rights?

11. In the 2006 Second Circuit Court of Appeals case Hayden v. Pataki, the plaintiff, a convicted murderer, argued that because prisoners in New York State are disproportionately black and Hispanic, New York’s law preventing convicted felons from voting until after they have completed their prison sentences or their parole is racist and thus unconstitutional. Your verdict, which dissented from that of the majority, held that the plaintiff's position was justified by the “plain terms” of the Voting Rights Act.

Do you believe that there should be no restrictions at all on the voting rights of American citizens, regardless of whatever crimes they may have committed?

"I am a product of affirmative action. I am the perfect affirmative action baby. I am Puerto Rican, born and raised in the south Bronx, and from what is traditionally described as a socio-economically poor background. My test scores were not comparable to that of my colleagues at Princeton or Yale. Not so far off the mark that I wasn't able to succeed at those institutions.... [I]f we had gone through the traditional numbers route of those institutions, it would have been highly questionable whether I would have been accepted with my academic achievement in high school. I was accepted rather readily at Princeton, and equally as fast at Yale. But my test scores were not comparable to that of my classmates, and that's been shown by statistics, there are reasons for that. There are cultural biases built into testing, and that was one of the motivations for the concept of affirmative action, to try to balance out those effects."

What is your evidence for the assertion that there are "cultural biases built into testing"? Do you foresee a time when putting an end to race preferences might be justified?

Of course, it precisely these kinds of questions that Sotomayor’s supporters wish to see suppressed during her confirmation hearings. But serving on the Supreme Court is a great responsibility, and Americans deserve a fuller accounting from the presumptive next justice than many in the media and political worlds are willing to provide.

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